Star Brush Manufacturing Co., Inc.

STAR BRUSH MANUFACTURING CO., INC. 679 and was also responsible for the dinner arrangements. If, on the other band, the dinner date was set after the conference, it must necessarily have been done with knowledge that the election was scheduled for the following day. I cannot agree with the Employer's contention that the timing of the dinner was mere coincidence. A dinner of the kind here involved, so timed, and representing a substantial deviation from the Employer's prior practices in such affairs, cannot but have been calculated to affect the choice to be made by the employees in the election the following day, and I so find. In the sense that this dinner was unrelated to any business need of the Employer, it was an unusual benefit to the employees; and as such, is no less interference with the free choice of the employees because the Employer refrained from overt promises of benefit than would be a wage increase or other change in working conditions under similar circumstances." I accordingly conclude that the dinner of June 12, 1951, constituted improper interference with the election of June 13, 1951. B. Conclusions and recommendations It has been found that the Employer improperly interfered with the conduct of the election in the above matter by the use of Boltz as its observer, and further through the dinner for its employees on the eve of the election. It is accordingly concluded that the Employer's exceptions to the Regional Director's report on objections are without merit, and it is recommended that the said excep- tions be overruled. It is further recommended that the election be set aside and a new election directed. Any party may within 10 days from the date hereof file with the Board in Washington, D. C., seven copies of exceptions hereto. Immediately upon the filing of such exceptions the party filing the same shall serve a copy thereof upon each of the other parties, and shall file a copy with the Regional Director for the Thirteenth Region. Proof of service shall be made to the Board. If no exceptions hereto are filed, upon the expiration of the said 10-day period the Board may decide the matter forthwith upon the record , or may make other disposition of the case , pursuant to Section 102.60 of the Board's Rules and Regulations; Series -6, as amended. 13 See, e. g., Spengler-I oomis Mfg Co., 95 NLRB 243. STAR BRUSH MANUFACTURING CO., INC. and MARY MAHER, PETITIONER and OFFICE EMPLOYEES' INTERNATIONAL UNION, LOCAL 6, AFL. Case No. 1-RD 108. August 20, 1952 - Decision and Order Upon a petition for decertification duly filed, a hearing was held before David E. Davis, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 100 NLRB No. 111. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Petitioner, an employee of the Employer, asserts that the Union is no longer the representative of certain employees of the Employer, as defined in Section 9 (a) of the Act. The Union is a labor organization recognized by the Employer as the exclusive bar- gaining- representative for the',e iployees designated in the petition. 3. No, question affecting commerce exists concerning the repre- sentation of employees of the Employer within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act for the following reasons : The bargaining unit for which the Union is herein sought to be decertified- as representative consists of the Employer's clerical employees. The Petitioner, one of these employees, is the secretary to the Employer's general manager who participates in contract nego- tiations and other labor relations matters with the Union involving the employees concerned in this proceeding. Because of the Peti- tioner's relation to the general manager, we find that she is a confiden- tial employee similar to those whom the Board customarily excludes from bargaining units. . The Petitioner, however, upon the Union's insistence, has been included in the unit. The Union nevertheless contends, in effect, that she is disqualified to file a decertification peti- tion because she is a confidential employee. We find merit in this contention. Section 9 (c) (1) (A) of the amended Act provides in pertinent part for the filing of decertification petitions "by an employee or group of employees or any individual or labor organization acting in their behalf" (emphasis supplied). The legislative history of the Act and the precise language of this section indicate clearly that Congress intended decertification proceedings to provide a remedy exclusively for and in behalf of employees and not of employers.' Accordingly, the Board has held that supervisors, because they are 'mtnageinent'representatives anal owe special loyalties to their employ- ers which would subject them to conflicts in allegiance if they were permitted to participate in union activities with employees, are dis- qualified from filing decertification petitions.' Similarly, we regard confidential employees to whom an employer entrusts secret labor relations information vital to the interests of those fellow employees with whom they may seek to engage in union activities, as persons who, like supervisors, owe and are expected to manifest special loyalties to their employers. Because these loyalties would subject them to con- flicting allegiances if they were encouraged by this Board to partici- pate in such activities ,3 this should, in our opinion, disqualify them as petitioners in decertification proceedings. ' Clyde J Merrzs, 77 NLRB 1375 ; see Senate Report No. 105 on S 1126, p. 10. s Clyde J. Merris, ibid. See E. P. Dutton & Co., Inc., 33 NLRB 761. STAR BRUSH MANUFACTURING CO., INC. 681 It is -totally irrelevant to these broad considerations that 'the Peti- tioner had been included in the bargaining unit because of the Union's insistence. The Petitioner's disqualification to file a decertification petition is not cured by her inclusion in a bargaining unit from which the Board has traditionally excluded such employees. The fact that she had been erroneously included in the unit at the Union's own insistence does not create competence where none would otherwise exist. Accordingly we shall grant the Union's motion to dismiss the petition filed in this case. Order Upon the basis of the foregoing findings of fact and the entire record in this proceeding, the National Labor Relations Board hereby orders that the petition filed by Mary Maher for the decertification of Office Employees' International Union, Local 6, AFL, as the bar- gaining representative of the employees of Star Brush Manufacturing Co., Inc., be, and it hereby is, dismissed. MEMBERS HOUSTON and PETERSON, dissenting : We cannot agree with the determination of the majority that the Petitioner, who has long been included in the bargaining unit, is in- competent to file the present decertification petition. Although her status is that of a confidential secretary, it is uncon- troverted that Petitioner is an employee within the meaning of the Act.' Section 9 (c) (1) (A), by its specific terms, provides that a petition for decertification can be filed "by an employee." There- fore, as a matter of law, Petitioner is not necessarily disqualified from initiating this proceeding. The majority nevertheless seeks to justify its disqualification of the Petitioner by equating her status to that of the "supervisory rep- resentatives of management" considered by the Board in the Merril case, and holding that, like those individuals, she owes special loyal- ties to the Employer which would subject her to conflicting allegiances if she were to participate in union activities with other employees. Such reasoning is clearly not persuasive in this case. Initially, as already mentioned, Petitioner, unlike a supervisor, is an employee under the Act. While a confidential secretary is ex- cluded from a bargaining unit because of the nature of her work,5 she is not a representative of management solely by reason of her posi- tion, nor is she prohibited from engaging in union activities merely 4 See Southern Colorado Power Co., 13 NLRB 699 , en-M. 111 F 2d 539 ( C. A 10) ; N. ,L. R B. v. Poultrymen's Service Corp ., 138 F 2d 204 ( C A. 3). Cf. Coopersville Co- operative Elevator Company, 77 NLRB 1083 ; American Book-Stratford Press, Inc., 80, NLRB 914. 5 Brooklyn Daily Eagle, 13 NLRB 974, 986, and numerous cases thereafter. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of her status as a confidential employees Secondly, the possible conflicts in allegiance adverted to by the majority are ob- viously not present in this case, the Petitioner having been included in the unit at the insistence of the very Union which now seeks to dis- qualify her, and with the admitted acquiescence of the Employer. Finally, we believe that the purposes of the Act are frustrated, rather than effectuated, by withholding from an employee the express statu- tory procedures for terminating the authority of the agent which has been serving as her bargaining representative.' Under the circumstances of this case, we would find that the Peti- tioner is a proper party to file the petition, and we would direct an immediate election. ° See cases cited in footnote 4, supra. ° Of course, it is unnecessary here to decide , nor do we, whether a confidential employee not currently being represented by the statutory agent in the unit involved may properly file a decertification petition. CONTINENTAL CAN COMPANY, INC. and UNITED STEELWORKERS OF AMERICA, CIO, PETITIONER. Cabe No. 10-RC-1836. August 21, 1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Allen Sinsheimer, Jr., hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this.case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Employer and the Intervenor, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local #79, A. F. L., urge as a bar to this proceeding a contract between them, effective by its terms until May 22, 1953. The Petitioner con- tends that the contract should not operate as. a bar, alleging that it contains (1) a maintenance-of-membership provision illegal under Florida law, and (2) a so-called "harmony pledge" illegal under Sec- tion 8 (a) (3) of the Act. As to the first contention, the Florida State Constitution provides that: 100 NLRB No. 118.